Rule of the best evidence

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The best law of proof requires “original writing, recording, or photographing” to be presented in order to “prove the substance of writing, recording, or photographing,” unless any exceptions occur. (Review of Federal Evidence, 2009). The best proof rule has not been formulated, nor has it ever been meant to be used as a means of criticizing the evidence of the opposition, but it has been developed to ensure the authenticity of the evidence obtained. The strongest proof doctrine originated in the age of Johannes Gutenberg, a German who developed the printing press in 1440. It was created at a period when records were seldom copied and, if they were, reproduced by hand. Often the rights asserted by parties in court are derived from a written document, such as a will or a deed, and, historically speaking, reproductions or oral testimony with regards to the content of such documents was merely unreliable since error is to human. The situations resulted in the coming up with the best evidence rule, demanding in case a document is the origin of the rights, duties or obligations of a party, the master document ought to be analyzed to ascertain its contents. Hand-written reproductions, or someone’s mere recollection or belief of the contents of a document, were all considered to be fraught with too much potential for human error or outright fraud.

The documents are mostly in such a way that the same words are of more than ordinary significance, especially where functional or dispositive instruments in case a small variation of words may imply a big difference in rights.” (Justia, 2017). Secondary evidence — whether parole testimony (common law rule in contract cases) or copies — is sensitive to human and mechanical mistake. Hence, the rule increases the probability of accuracy. The rule promotes fraud prevention because it allows both parties to examine the documents for any defects or alterations, and it discourages any desire to lie and perjure oneself during testimony as to the contents of documents since any testimony is subject to direct corroboration.

The show of the original may render information as to its authenticity and importance which may be missing in a copy, such as handwriting, a seal, paper, etc. (Sudderth, 2011). The 4th Amendment warrants people the right to security their houses, papers, and effects, from unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon grounds, supported by an oath or affirmation, and especially describing the place to be searched, and the persons or things to be seized.”(Tishman, Harvey, & Bagby, n.d.)

At the beginning of their inception, wiretaps brought a rift in the waters between the government’s judicial system and the people of the United States. The case of Olmstead v. the United States (1928) was a critical if not iconic turning point in our judicial system’s handling of wiretaps and the legality of them in regards to being admissible as evidence in a court of law. In February of 1933 the 18th Amendment (prohibition of liquor) was repealed and in December of 1933, the 21st amendment was ratified.

The Olmstead decision created a whirlwind of ambition and hope in the belief of the right to privacy throughout our Congress. They acted upon this whirlwind by proposing bills to forbid wiretapping by federal agents, but the proposed bills failed to pass., Congress made a declaration stating that no one unauthorized by the sender may tap any communication and disclose or bring out the existence, contents or even the substance. It was referred to as the Federal Communications Act of 1934. The case of Nardone v. the United States in 1937 citing this provision, the Supreme Court maintained that this same provision denied federal agents from wiretapping and denied such material from being permissible as evidence in any court of law. A second Nardone v. the United States conclusion in 1939 prohibited, from federal court proceedings, evidence discovered from pursuing leads from wiretaps, calling to action what was later called the “fruit of the forbidden tree” rule (302U.S. 379 and 308 U.S. 338). This case and many other later cases followed a booming trend in the Supreme Court that began immediately after the Olmstead case of limiting the powers of the federal government to search.

The contents of all wire, oral, or electronic communication acquired and to be applied as evidence in line with the provisions as outlined by law or evidence deduced therefrom shall not be consented into evidence nor will it be part of any testimony in any trial, hearing, or other proceeding in a Federal or State court except where both parties, not less than ten days prior to the trial, hearing, or proceeding, are equipped with a copy of the court order, and accompanying application, under which the interception was authorized or approved.

The current wiretap statute is the Wiretap Act which is the federal law that aims to protect privacy when communicating with another person. The contents of all wire, oral, or electronic communication that has been intercepted by any means authorized by Chapter 119 of U.S Code shall, if possible, be recorded on tape or wire or similar electronic device. The recording of the contents of any wire, oral, or electronic communication under this subsection shall be done by the proper procedures to secure the recording from editing or other modifications. Immediately after the expiration of the order period, or extensions allowed following the earlier wiretap order, all recordings/wiretaps are expediently availed to the judge making the wiretap order and later sealed according to his/her directions. Custody of the recordings will be wherever the judge dictates. They will not be destroyed apart from an order of the giving or denying judge and anyhow shall be kept for a decade. Duplicate recordings or backup copies might be made for use or revealing under the provisions of subsections (1) and (2) of section 2517. The presence of the seal provided for by this subsection, or a acceptable explanation for the lack thereof, shall be a requirement for the use or revealing of the contents of any wire, oral, or electronic communication or evidence derived from any investigation with the aim being to collect evidence from under subsection (3) of section 2517.

DNA (deoxyribonucleic acid) is among the most reliable source of evidence in many criminal cases since human genes are encoded in it (Department of Justice Archives, 2017). One of the amazing this with the DNA testing technology is that it can be used to solve cases of crime that took place before its development. Today it’s a gold measure used in the identification of criminal suspects all over the U.S. In the fight against sexual offenses in the U.S, all the states ask sexual offenders to present their DNA samples to their respective local police departments. Today, unlike 15-20 years ago, a system referred to as Combined DNA Index System (CODIS) which maintains DNA profiles is available to law enforcement agencies throughout the country for the purpose of law enforcement (Department of Justice Archives, 2017). On the other hand, DNA test can be used to acquit individuals who have been wrongly accused especially when the someone was convicted based on eyewitness testimony (Department of Justice Archives, 2017). Other uses of DNA test include; identification of crime and accident victims and finding out paternity in child support cases. There is a possibility that DNA samples can be lost in a case involving the test. When dealing with a case involving DNA test then, then the evidence only follows the best evidence rule if it can be authenticated where necessary.

The fruit of the poisonous tree concept is founded on legal concepts which involve using more evidence based on the initially illegally seized evidence. Wiretaps include procedures that involve treating them differently and with more restriction than any other kind of evidence. Provided that the copies made from the originals were properly recorded bagged and tagged through the proper protocols and chain of command/ then the best evidence rule would apply to the scenario.

References

Department of Justice Archives. (2017, March 7). Advancing Justice Through DNA Technology: Using DNA to Solve Crime. Retrieved from The United States Department of Justice Archives: https://www.justice.gov/archives/ag/advancing-justice-through-dna-technology-using-dna-solve-crimes

Federal Evidence Review, (2009). Applying The Best Evidence Rule | Federal Evidence Review. Federalevidence.com. Retrieved 10 March 2017, from http://federalevidence.com/node/507

LII, Rule 1002. Requirement of the Original. LII / Legal Information Institute. Retrieved 10 March 2017, from https://www.law.cornell.edu/rules/fre/rule_1002

Justia. (2017). Shawn Shugart v. The S tate of Texas–Appeal from 12th District Court of Madison County. Justia Law. Retrieved 15 March 2017, from http://law.justia.com/cases/texas/tenth-court-of-appeals/2000/6495.html

Tishman, D., Harvey, P., & Bagby, J. Electronic Surveillance: Federal Laws. Esurveillance.ist.psu.edu. Retrieved 10 March 2017, from http://esurveillance.ist.psu.edu/fed.php

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